Order on Board

09.01.2025

1) The petitioners have challenged the order passed by the learned Civil Judge, Class-II, Khairagarh, District Rajnandgaon (C.G.) dated 25.01.2024 whereby, the application moved by the petitioners/plaintiffs under Order 26 Rule 9 read with Section 151 of C.P.C has been rejected.

2) Mr. Tiwari, the learned counsel appearing for the petitioners would submit that a civil suit was filed by the plaintiffs for eviction of respondents No.4 to 9 from the land reserved for public service shown in Scheduled-A, perpetual injunction restraining respondents No. 4 to 9 from encroaching the aforesaid land and declaration that the order passed by the Tehsildar dated 04.05.2022, the order passed by the Sub-Divisional Officer (Revenue), Khairagarh in appeal dated 17.05.2022 and the order passed by the Commissioner dated 01.09.2022 are not binding upon the petitioners/plaintiffs. He would further submit that Survey Nos.421 and 422 situated at Village Sonesara are recorded and reserved in the revenue records for the road. Respondents No. 4 to 9 encroached over that land. He would contend that there was a boundary dispute between the parties, therefore, an application under Order 26 Rule 9 read with Section 151 of C.P.C was moved. He would further contend that defendants No.4 to 9 filed their reply and vide order dated 25.01.2024, the learned Trial Court rejected the application under Order 26 Rule 9 read with Section

151 of C.P.C stating that the application has been moved by the petitioners to collect evidence through the Court. He would state that the learned Trial Court committed an error of law in rejecting the application moved by the petitioners. In support of his submissions, he placed reliance on the judgment passed by this Court in the matter of Phoolchand Asra Vs. Nagar Palika Nigam Raipur and others, Writ Petition (227) No.821 of 2019 decided on 09.09.2022.

3) On the other hand, Mr. Sourabh Shukla, the learned counsel appearing for respondents No.4 to 9 would oppose the submissions made by Mr. Tiwari. He would submit that there is an incorrect allegation against respondents No.4 to 9 that they have encroached over the Government land. He would further submit that without there being any basis, a civil suit was filed. He would lastly submit that the learned Trial Court rightly rejected the application under Order 26 Rule 9 of CPC moved by the petitioners/plaintiffs.

4) Mr. Bharat, the learned Government Advocate appearing for the State would support the order passed by the learned Trial Court.

5) I have heard the learned counsel appearing for the parties and perused the documents placed on the record.

6) From a perusal of the pleadings averred in the plaint, it is quite vivid that there is a dispute with regard to the boundary. It is alleged by the petitioners/plaintiffs that the defendants/respondents No.4 to 9 encroached over the Government land which is reserved for way/path in the revenue records bearing Survey Nos.421 and 422.

7) The plaintiffs moved an application under Order 26 Rule 9 of CPC to issue a commission to ascertain the correct status of the land including encroachment.

8) Learned Trial Court rejected the application under Order 26 Rule 9 of CPC assigning reasons that the application was moved by the plaintiffs to collect evidence.

9) This Court in the matter of Phoolchand Asra (supra) held in paras 9,10,12 & 13 as under:-

“9.Section 75 of C.P.C deals with power of court to issue a commission and same is reproduced herein below:-

“75. Power of court to issue commissions – Subject to such conditions and limitations as may be prescribed, the court may issue a commission -

(a) to examine any person;

(b) to make a local investigation;

(c) to examine or adjust accounts; or (d) to make a partition;

[53] [(e) to hold a scientific, technical, or expert investigation;

(f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the su